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Court Rules Against Little Sisters of the Poor

Tuesday afternoon, a three-judge panel in Denver effectively told the Little Sisters of the Poor that they would be forced to go along with the contraceptive provisions of Obamacare and relevant regulations regardless of conscience. If not, the sisters would be so severely fined by the federal government that they would have to close their doors.

In one of the most cynical ploys I have ever seen come from this or any White House, the administration crafted a regulation making an “exception” to the contraceptive mandate giving these servants of the elderly poor and other religious non-profits the “option” to salve their consciences by simply signing a Federal Form 700 declaring their objection is based on a matter of conscience.

The Little Sisters had argued through their Becket Fund attorney that they still felt entangled in providing contraceptives to their employees since they were signing a federal form that made it possible for third parties to provide the contraceptives.

Several months ago, I received quite a bit of response to a piece titled “Sisters vs. Sebelius” posted to the Gregorian which also appeared in Aleteia. In that article I tried to demonstrate how the game of funding could be played. In it I also expressed my hope that the courts would somehow accommodate the First Amendment conscience rights of religious non-profits providing cherished service to those in need.

The Shell GameSadly, Tuesday’s Tenth Circuit reasoning was a variation on an old shell game that controversial non-profits have used to allay the fears potential contributors might have that their money might go to services they find morally objectionable. Planned Parenthood often used this ruse to worm its way into umbrella community organizations like United Way. “None of the money you contribute will be used for abortions.” To the skeptical, the message was we will just use your contributions for other good things like electricity, heat, examinations and the likes. Not stated but implied was the fact that the organization would stop providing abortions, just that “other monies” would be used for that. Without utilities, Planned Parenthood clinics would not be able to provide the abortions.

The Tenth Circuit’s version of the game says to the Little Sisters of the Poor, none of “your money” will be used to procure the contraceptives you find objectionable. Other monies will be used to provide the contraceptives. The judges did not seem interested in looking at the fact that existing federal programs could have been used to pay for the contraceptives without bullying the Little Sisters of the Poor.

The First Amendment FreedomsIn another context, the Supreme Court, in the Citizens United case involving corporate contributions to political campaigns, said that giving money to candidates for public office could not be limited by the Federal Election law because contributions were a form of free speech.

The speech part of the First Amendment was deemed sacrosanct, but the free exercise of religion principle, also embedded in the First Amendment, was evidently considered more malleable by the Tenth Circuit especially where the Little Sisters were concerned.

To appear to be mollifying the Colorado nuns, the court seemed to echo the administration that their insurance carrier or a third party could pay for the dispensing of the contraceptives to the employees of the Little Sisters of the Poor. The ploy was to let the insurance company take the blame.

Perhaps the members of the three-judge panel were unaware that Christian Brothers Insurance, which had the same conscience concerns, was providing the coverage for the Little Sisters of the Poor? Of course the judges were aware.

A Disturbing PatternIn many ways the situation the Little Sisters of the Poor are mired in is but a part of a larger effort by federal courts to reshape the First Amendment by marginalizing the ability of religious organizations to take ministries into the public square. The Supreme Court in the recent Obergefell v. Hodge (dealing with state marriage laws deemed discriminatory to same-sex couples) created a conundrum for churches where marriage was concerned. Justice Kennedy told clergy not to be overly concerned about religious freedom. After all, he asserted, no one would keep them from preaching their doctrines in their churches, synagogues, or mosques. If the lessons of Europe are any model, advocates of a “new morality” will bring suit to require federal prosecutors and courts to pressure pastors to mold their sermons to fit the “new morality,” recently given the imprimatur of federal judges in cases like Obergefell. Those who would question this “new orthodoxy” are already being castigated as bigots or worse. Sermons could be labeled hate speech or before long child abuse when the discriminatory old morality is taught in religious schools.

Some Orthodox Church leaders have suggested that the churches should get out of the business of certifying marriages altogether for the states.

Will schools be next? Already we have seen Catholic adoption services being driven out of business in Boston and San Francisco for refusing to provide adoption of children to same-sex parents. Then Archbishop Sean O’Malley in 2006 declared, “Sadly, we have come to the moment when Catholic Charities … must withdraw from the work of adoption.”

The archbishop referred to the clash between providing the service and being able to exercise religious freedom. Pope Francis’s Sunday sermon in June of 2015 proclaiming that children have a right to a mother and a father is likely to be castigated as hate speech too.

How about legal cases to end tax exempt status for all religious denominations? Is that next? Some have already called for an end to tax exemption for churches. So many things have been happening on the religious expression and exercise front in such a short period of time that what might have been considered mere conspiracy theory keeps edging closer and closer to reality.

Still, elections in our federal system have consequences, especially on the make-up of the Justice Department and the future of the federal courts. We get the kind of justice and legal system we will accept. We are reminded by Archbishop Thomas Wenski, who closed the bishops’ Fortnight for Freedom ceremonies that, the right of religious liberty is rooted in the dignity of each human person. He reminded us that religious freedom is the freedom that guarantees all other rights in a democracy like ours.

Frank Kessler, Professor of Political Science at Benedictine College, earned his Ph.D. from the University of Notre Dame. He has published books, print articles, anthology chapters and review essays on the presidency, constitution, and international politics in Presidential Studies Quarterly, Current History, Revista Interamericana, and the American Political Science Review. He retired as Distinguished Professor at Missouri Western State University and has taught presidential politics to graduate students at University of Missouri – Kansas City.